In loco parentis means “in place of parent.” The in loco parentis legal doctrine can be applied to both governmental and non-governmental entities, and is implicated “when a person [or legal entity] undertakes the care and control of another [person of legal incapacity] in the absence of such supervision by the latter’s natural parents and in the absence of formal legal approval.” Black’s Law Dictionary 787 (6th Ed. 1990)(quoting Griego v. Hogan, 377 P.2d 953, 955-56 (N.M. 1963)). The doctrine most commonly applies to minors, but can apply in other contexts, such as adult-age persons who are suffering from permanent and severe medical incapacity.

Application of the in loco parentis doctrine requires, at minimum, that 1) the minor’s parents are absent (either voluntarily by overt act or by forbearance, or because of an incident beyond the parents’ control), 2) the adult caretaker on the scene is not the minor’s legal guardian or custodian, and 3) the adult caretaker on the scene has, for the relevant time period, assumed control over the routine care and basic control of the child (e.g. shelter, safety, food, medical care, bathing, clothing, transportation, education, nurturing).

Applied examples of the doctrine would include care of a minor by a babysitter (while babysitting), school teacher (while teaching), boarding school (while the child resides there), scoutmaster (while providing oversight), attending physician (in a hospital when the parents are absent), day care provider (while the child is at the facility), law enforcement officer (while helping a lost child), rescue worker (while completing the rescue), mental institution (so long as the minor has been signed in by the parents), non-adoptive step-parent (while married to the natural parent), or social worker (while trying to locate parents of a temporarily endangered child).

The traditional in loco parentis doctrine entails a temporary delegation of parental power, not a permanent and involuntary derogation of parental liberty. The natural parent is free to A) limit the scope of the power delegated, B) direct the actions of the temporary caretaker of the child, C) demand accountability from the temporary caretaker of the child, and D) terminate the delegation of power. The doctrine has nothing to do with parental unfitness and does not entail any power to override direction from a fit natural parent.

Put another way, an in loco parentis caretaker’s legal standing, rights, and authority are entirely derivative from parental consent or the circumstances of a temporary necessity. Standing, rights, and authority under the doctrine are therefore constrained by any affirmative limitations imposed by the parent, either at the onset of the temporary relationship or at any point thereafter. For example, a parent “‘may . . . delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child, who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.’” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654 (1995)(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769))(emphasis added).

In Loco Parentis Doctrine Contrasted With Other Legal Doctrines

The traditional in loco parentis doctrine involves care that is “temporary in character and not to be likened to [the permanent situation of] adoption.” Griego v. Hogan, 377 P.2d 953, 955-56 (N.M. 1963)(emphasis added); Coons v . Anderson, 104 S.W.3d 630, 636 (Tex. App. Ct. 2003)(“common law relationship is temporary and ends when the child is no longer under the care of the person in loco parentis”); Black’s Law Dictionary 787 (6th Ed. 1990)(defining “in loco parentis”). Adoption did not exist at common law, and is a modern creature of the state legislatures. Lofton v. Secretary of the Dep't of Children and Family Serv., 358 F.3d 804 (11th Cir.), aff’d 377 F.3d 1275 (11th Cir. 2004)(en banc). Adoption is a statutory privilege extended to carefully screened adults as a discretionary exercise of state parens patriae police power for wards who have first been found to lack care from a fit and willing natural relative. The proper overriding criteria for adoption is the best interest of the child, not any right or interest of a non-relative adult applicant.

The in loco parentis should not be confused with the parens patriae doctrine. The doctrine of parens patriae “is a concept of standing utilized to protect . . . quasi-sovereign interests, such as ‘health, comfort, and welfare’ of the people,” when such interests are threatened and state government intervention may be needed. Gibbs v. Titelman, 369 F. Supp. 38, 54 (E.D. Pa. 1973), rev’d on other grounds, 502 F.2d 1107 (3d Cir. 1974). Only a sovereign (meaning, in the United States, a state government) can intervene as parens patriae, acting as the “'general guardian of all infants, lunatics, idiots.’” Fontain v. Ravenel, 58 U.S. 369 392-93 (1854) (Taney, J. concurring)(citing 3 W. Blackstone, Commentaries on the Laws of England 48 (1769)). Parens patriae intervention is often contrary to the expressed wishes of the natural parent, and of a permanent nature. State governments may not properly override parental decisions or terminate custody, unless 1) parents delegate their authority to the state voluntarily and knowingly, or 2) the state demonstrates through appropriate due process that there is clear and convincing evidence that the parents have triggered state parens patriae interests by placing their children in clear and present danger. Cf. Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d. Cir. 1997).

The in loco parentis doctrine is also distinct from the legal concepts of conservator, guardian, custodian, attorney-in-fact, and personal representative. A conservator (or guardian of the estate) is an adult appointed by court order to manage the property of another person (typically a minor or medically-incapacitated person). A guardian (or guardian of the person) is an adult appointed by court order to manage the daily care of another person (typically a minor or medically-incapacitated person). A custodian under the Uniform Transfers to Minors Act is a person designated by a grantor (or a court) to manage property transferred under the Act to another person (typically a minor or medically-incapacitated person). An attorney-in-fact is a person identified by a power-of-attorney document, signed by a competent adult, which authorizes the attorney to legally act on behalf of that adult under specified circumstances (an attorney-in-fact need not be a state-bar-admitted attorney-at-law). A personal representative (or executor or administrator) is an adult recognized by court order as having fiduciary control over the estate of a deceased individual.

The in loco parentis doctrine has occasionally been misunderstood, distorted, or misapplied. The genuine doctrine, properly understood, never applied to allow non-relatives (or even step-parents) acquisition of a permanent right to a child solely by a kind of psychological adverse possession. In another words, a non-relative cannot legitimately gain a squatter’s right to someone else’s a child simply by spending a lot of time with that child. No adult can properly gain custody or visitation for a non-biological child over the objections of a natural parent, unless that adult has 1) formally adopted the child who is legally shown to lack the benefit of a fit, willing natural parent, or 2) procured some similar type of valid, written, voluntarily-signed legal agreement with the natural parents (such as a voluntary settlement agreement).

Similarly, the in loco parentis doctrine is not a proper or adequate substitute for the parens patriae doctrine. Government officials, including appointed government guardian ad litem attorneys who purport to represent the interests of children in legal proceedings, must satisfy all of the statutory requirements, procedural rigors and constitutional constraints that are associated with the invocation of the parens patriae doctrine. Derogation of a natural parent’s instructions for a minor cannot properly be authorized on the basis of the traditional in loco parentis doctrine.

Likewise, the in loco parentis doctrine should not be confused with the de facto parent doctrine, the psychological parent doctrine, or the equitable parent doctrine (also known as the parent by estoppel doctrine). The latter three doctrines are recent judge-made creations that grant standing to non-biological parents who are seeking to obtain visitation, custody, or other aspects of parental power over a child notwithstanding the objection of that child’s biological parents and/or closest living biological relatives. Such doctrines have gained ground in states such as Wisconsin, Washington, New Jersey, Vermont, Massachusetts, Michigan, and California.

The most prominent judicial formulation of the de facto parent doctrine of standing is set forth in Holtzman v. Knott (In re Custody of H.S.H-K.), 533 N.W.2d 419, 435-36 (Wis. 1995), cert. denied, 516 U.S. 975 (1995), a case in which the Wisconsin Supreme Court created a four-part test that a petitioner must satisfy to claim status as a de facto parent:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

After the petitioner has satisfied the four elements, the petitioner is accorded standing to assert or participate in a lawsuit. A court then conducts a “best interest of the child” analysis to determine how custody, visitation, and other aspects of parental power over the child ought to be divvied among various adult parties. The basic notion underlying the de facto parent doctrine is that if a natural parent has voluntarily allowed another adult (male or female, of the same or opposite gender) to become involved in the natural parent’s household and/or with the natural parent’s child, that other adult acquires standing to force continual involvement with the child even if the natural parent attempts to withdraw or terminate consent for continued interaction.

Some jurists who favor the de facto parent doctrine choose to advocate variations of the formulation above. E.g.Jones v. Barlow, 2007 UT 20, ¶68 (Chief Justice Christine Durham of the Utah Supreme Court, in dissent, states “I would simplify the test by combining the second, third, and fourth parts of the Wisconsin test into one element requiring the petitioner to establish the existence of an actual parent-child relationship between the petitioner and the child. I would therefore require that a third party claiming de facto parent status establish by clear and convincing evidence that (1) the legal parent intended to create a permanent parent-child relationship between the third party and the child, and (2) an actual parent-child relationship was formed.”).

The psychological parent doctrine is formulated in various ways and is sometimes used as an interchangeable term with the de facto parent doctrine. Strictly speaking, however, the psychological parent doctrine is conceptually distinct and tends to afford standing to a broader group of adults. With respect to the Holtzman Test set forth above, the psychological parent approach tends to eliminate requirement two, place overriding emphasis on element four, and eliminate or relax required showings for elements one and three. In its most extreme formulation, the psychological parent doctrine allows any adult to assert parental rights to any child merely by demonstrating that 1) the petitioner has for whatever reason, and in whatever way, established with the child a bonded, dependent psychological relationship, and 2) it is in the best interest of the child that the relationship be maintained (often on the theory that the child will experience "emotional harm" as a result of separation).

In other words, the psychological parent doctrine is even more far-reaching in effect than the de facto parent doctrine and has the same practical effect as various radical judicial re-constructions of the in loco parentis doctrine (i.e. judicial opinions erroneously characterizing the in loco parentis doctrine as anything other than a voluntary and temporary delegation of parental power). The psychological parent doctrine basically arose as an acknowledgment that the concept is an expressly new judge-made doctrine, rather than a bona fide and legally legitimate extension of the long-standing traditional common-law in loco parentis doctrine.

The equitable parent doctrine, also known as the parent by estoppel doctrine, was originally adopted in Atkinson v Atkinson, 160 Mich. App. 601, 608-609 (1987), as formulated below:

a husband who is not the biological father of a child born or conceived during the marriage to the mother may be considered the natural father of the child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

The equitable parent doctrine was subsequently adopted by the Michigan Supreme Court in Van v. Zahorik, 597 N.W.2d 15 (Mich. 1999), and is based upon the notion that a person can be estopped by their own actions from denying the incidents of parental rights to another person. Attempts have been made to extend this estoppel doctrine for the benefit of adults who are not in a marriage and are not biological parents. This expanded theory of the doctrine is a kind of back-door method for achieving the same practical result as alteration of the traditional in loco parentis doctrine. E.g. D.G. v. D.M.K., 557 N.W. 2d 235, 241 (S.D. 1996)(unsuccessful attempt to expand doctrine).

For an excellent legal overview of the in loco parentis doctrine, the de facto parent doctrine, and the precedents and policies surrounding the general issue of adults suing for incidents of non-biological parenthood, seeJones v. Barlow, 2007 UT 20, a Utah Supreme Court case that properly rejected all such doctrines other than the traditional in loco parentis doctrine.

In Loco Parentis Doctrine And Public Education

In Morse v. Frederick, the United States Supreme Court grappled with the in loco parentis and the First Amendment right to free speech in the context of public education. The case contains the most extensive and important debate about the in loco parentis doctrine in the history of the Supreme Court.

Justice Clarence Thomas wrote a concurring opinion indicating that public schools act with delegated authority pursuant to the doctrine of in loco parentis. He reasoned that since a public school student has no right of free speech against the student's parents, the student also had no right of free speech against the public schools:

[T]he history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800's. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common. . . .

. . . .

During the colonial era, private schools and tutors offered the only educational opportunities for children, and teachers managed classrooms with an iron hand. . . . Public schooling arose, in part, as a way to educate those too poor to afford private schools. . . . Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800's, no one doubted the government's ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled "a core of common values" in students and taught them self-control. . . . "By its discipline it contributes . . . to generate a spirit of subordination . . . . "

. . . .

Teachers instilled these values not only by presenting ideas but also through strict discipline. . . . Schools punished students for behavior the school considered disrespectful or wrong. . . . To meet their educational objectives, schools required absolute obedience. . . .

. . . .

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

. . . .

Through the legal doctrine of in loco parentis, courts upheld the right of schools to discipline students, to enforce rules, and to maintain order.[ “[C]ourts have applied the doctrine of in loco parentis regardless of the student's age. . . . the fact that Frederick was 18 and not a minor under Alaska law . . . is inconsequential.”] Rooted in the English common law, in loco parentis originally governed the legal rights and obligations of tutors and private schools. 1 W. Blackstone, Commentaries on the Laws of England 441 (1765) ("[A parent] may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed"). . . .

. . . .

. . . . As originally understood, the Constitution does not afford students a right to free speech in public schools.

. . . .

. . . . Several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules.

. . . . I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. . . . If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

Justice Thomas' paradigm rests on an assumption that families have freedom of educational choice, because parents "can send their children to private schools or home school them; or they can simply move." Thomas also apparently assumed a Jeffersonian model of education where neighborhood parents of students actually enjoy meaningful local governance of school operations.

In a separate concurrence that apparently delineates the parameters of the free speech holding in Morse, Justices Alito and Anthony Kennedy challenged Justice Thomas' assumptions. Justice Alito essentially argued that a) meaningful educational choice does not currently exist for many families, b) public schools act in a coercive parens patriae capacity instead of a voluntarily delegated in loco parentis role, c) many parents have no meaningful influence with regard to their local public school, and therefore, d) the right to free speech exists for public school students but is curtailed to the extent needed to serve the penological interests of the public schools:

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students' parents. It is a dangerous fiction to pretend that parents simply delegate their authority--including their authority to determine what their children may say and hear--to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis.

For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting. The special characteristic that is relevant in this case is the threat to the physical safety of students. . . . During school hours . . . parents are not present to provide protection and guidance, and students' movements and their ability to choose the persons with whom they spend time are severely restricted. Students may be compelled on a daily basis to spend time at close quarters with other students who may do them harm. Experience shows that schools can be places of special danger.

As Justice Alito concedes, public schools do not respect parental liberty, afford educational choice, or respond to the desires of local student parents. Thus, public schools tend to have little legitimacy in the eyes of many students and their families. Public schools have become "places of special danger" that afford neither safety nor quality educational performance. Public schools currently permit neither liberty nor market flexibility. The conventional response of the political elite has been to allow a restricted form of free speech that is adequate to prevent widespread majoritarian insurrection but inadequate to foster optimal student learning or innovation.

The core constitutional sin of compulsory public education is that the scheme incarcerates students who have committed no crime into a "place of special danger." So long as the starting assumption is that the constitution must accommodate public education, instead of the other way around, constitutional jurisprudence must be warped in a way that is neither philosophically coherent nor practically efficient.

Conclusion

The parental liberty doctrine is violated by the de facto parent doctrine, the psychological parent doctrine, the expanded equitable parent doctrine, or any improper construction of in loco parentis doctrine.